Rape - a hopeless case?

by Mary Jackson(October 2006)

"If a lady says no, she means maybe; if a lady says maybe, she means yes; if she says yes, she’s no lady."

"Whatever we wear, wherever we go

Yes means yes, and no means no!"

The Women’s Protection Bill, recently debated in Pakistan, proposed criminalizing marital rape. This in a country where, under the Sharia-based hudood laws, women’s testimony in sexual cases is completely disregarded, and those who fail to produce four male Muslim witnesses to a rape can be punished for adultery. This in a country where women are the property of fathers, then husbands, and finally, if they are lucky, sons, and where domestic violence and honour killings go largely unpunished. Marital rape? They do not have a prayer. Or rather they do, but it reads like this:

Men are in charge of women, because Allah hath made the one of them to excel the other, and because they spend of their property (for the support of women). So good women are the obedient, guarding in secret that which Allah hath guarded. As for those from whom ye fear rebellion, admonish them and banish them to beds apart, and scourge them. (4:34)

How much better things are here in the UK. Rape is treated as a serious crime, marital rape is illegal, and victims, far from being punished, are seen as needing sympathy, support and redress. But before we get too complacent, let us consider this - even without the obstacle of a religious law that regards a husband’s rights over his wife as ordained by God for all time, the UK criminalized marital rape only in 1993. I mention this astonishing fact not to draw a facile moral equivalence between women’s rights in the UK and in Islamic countries, but just because it is astonishing.

Why, in an advanced democracy with equal pay, a recent woman Prime Minister, free access to contraception and - for all practical purposes - abortion, and a transformation in attitudes to rape and sexual offences generally, did the idea persist for so long that a woman surrenders control over her body when she marries?

The arguments against such a law were not based on religion as they are in Pakistan. Nor did they necessarily arise from misogynist attitudes. The argument was simply that marital rape is difficult, if not impossible, to prove. Unless the couple is separated, and unless there are obvious signs of violence, this is undeniably true, and remains true whatever laws we pass. Marital rape is now a criminal offence, but I have not heard of a single conviction for it, and I imagine that its illegality has made no difference at all to its frequency. So should the law have been passed, even if not a single case is successfully prosecuted? My answer will have to be “Yes, but …” There is no doubt in my mind that this law is right, but at the same time no confidence that it can work.

All rape, other than stranger rape in a dark alley, is difficult to prove, with only around 5% of reported cases in the UK resulting in a conviction. In 2005, The Times (London) published a report drawing on a Home Office Study, which found that “rape attacks are increasing in England and Wales, but the number of cases that end in a successful prosecution has reached an all time low…Only 14 per cent of cases reached the trial stage, with the highest proportion of cases dropping out of the criminal justice system at an early stage.”

It is quite possible that the number of rapes taking place has indeed risen. Another explanation, not inconsistent with this, is that the criminal justice system is a victim of its own success. The police and the Crown Prosecution Service have adopted rigorous and sensitive procedures in sexual offences, including the creation of "Sexual Assault Referral Centres" for the interviewing of complainants in police stations by specially trained, and usually female, officers. As The Times reports, reforms such as these have "succeeded in encouraging more and more women to come forward to report rape but still too many cases never get into court." Complainants may now be more prepared to define and report as rape incidents which in the past they might have regarded - or feared others would consider - as simply "a nasty experience". The additional cases being reported, and brought to trial, may not be as strong as those which in less enlightened times made it to court.

The Home Office study found a “new trend” in rape: “ a pattern of drinking behaviour where a group go to a bar and offer to buy drinks or get chatting with girls or women and assume that some kind of sexual activity can be taken for granted. Alcohol is the lubricant in the process.”

This is, in fact, not a "new trend" at all. It is the background to almost all sexual assaults. What may have changed is that women are now more prepared to regard drunken sexual assaults as crimes and to report them to the police. Sexual assault and rape are just as wrong, in my view, when the perpetrator, the victim, or both are drunk.But how easy is it to secure a conviction?

Generally it comes down to the man’s word against the woman’s. It is sometimes assumed that the man is believed because of sexism or misogyny on the part of juries. However, to say this is to oversimplify.

I have served on a jury, although not on a rape trial. It is a fascinating, if sometimes frustrating experience. The most important concept that I took from it was that of “beyond reasonable doubt”, being the burden of proof required to obtain a criminal conviction. It is not enough for you to be confident that the defendant is guilty. The prosecution must have proved its case. If it has failed to do so, and if even the slightest doubt remains, you must acquit. In Scotland there is an intermediate verdict, between “guilty” and “not guilty”. The verdict is “not proven”, which means, in effect, “not guilty, but don’t do it again”. English law does not have such a verdict, so it is all or nothing.

Witness accounts conflict, even where witnesses are telling the truth as they see it. In cases where rape is alleged, a man may genuinely have believed that the woman consented; until May 2004 such belief, if held to be reasonable, was a defence to a rape charge. Alternatively he may have known that she did not consent, but this cannot be proved. Often, where both have been drinking, neither has a good recollection of what happened. If a jury acquits, it is not necessarily because its members disbelieve the woman, still less because they think she “asked for it”. Some people may think this, of course, but others may not, in all conscience, be able to say the prosecution case has been proved beyond reasonable doubt.

So change the law, some argue. Make it easier to convict. 95% of women cannot be lying. Rapists are walking free. Proposals were indeed put forward by the Government’s Office for Criminal Justice Reform and the Home Office for changes in the law which might have boosted conviction rates, including “a new definition of consent, which would make it clear when a woman is too drunk to say no”. However, these proposals were rejected as “dangerous and unnecessary” by the Criminal Bar Association, who argued with some justification that juries were “quite able to distinguish” between a person who is drunk but still able to consent even though he or she may regret it afterwards; and someone who had drunk so much that, while not passing out, he or she was not in a state to give any form of meaningful consent.

Short of convicting of rape any man who does not obtain a signed consent form, witnessed, of course, to preclude undue influence, it is difficult to see a solution to this problem. Many rapists will go unpunished, even if society reaches a state of total sexual equality and even if all rape trials are fair. And we are far from being in this Utopian state at the moment, even here in the West, which treats women better than any other culture in history.

We have come a long way in the last thirty years. A judge notoriously once “joked”: “If a lady says no, she means maybe; if a lady says maybe, she means yes; if she says yes, she’s no lady.” This is nonsense. “No” means “no” whatever the woman is wearing, whatever she has had to drink and whatever her sexual history. In 1982 a judge reduced the sentence of a lorry driver convicted of raping a hitchhiker on the grounds that, by hitchhiking alone, she was guilty of “contributory negligence”. This would not happen now. But if the lorry driver raped after a date, where both parties were drunk, the chances are that he would get away with it, and I cannot see that changing. The presumption of innocence means that the man’s word counts for more in securing his acquittal than the woman’s in securing his conviction. There is no way round this.

With rape, more than any other crime, we have reached the limits of the law. Rape is a hopeless case.